rationality, that has purportedly swept the world.64 In this section, I provide a description of this test, and its limited application, so far, in economic and social rights adjudication. First, it is perhaps surprising that proportionality analysis, in the standard three or fourstep variation that has been utilized by so many contemporary courts, 65 should be so absent from the adjudication of economic and social rights. If, in this era of “rights inflation”,66 we can talk about whether a right to feed pigeons exists, so too might it be expected that we can inquire about a right to secure a basic material existence – and about proportionality’s method for operationalizing it. Of course, for economic and social rights, and particularly the positive obligations that flow from them, much turns on the question of resources and then on how to understand a kind of “best efforts” 67 institutional commitment in law. But if proportionality analysis is prescribed as the current answer to rights-induced juristocracy, due to its discipline and apparent consistency, 68 it is curious that it has had so little hold on the cases that raise the most persistent juristocratic fears. Yet, as will be shown in Part III below, the surprise relates only to the absence of proportionality analysis. The principle of proportionality, without the structured test, has found a home in economic and social rights adjudication. The 64 Compare, e.g., MÖLLER, supra note 12, with DAVID BEATTY, THE ULTIMATE RULE OF LAW 160 (2004) (suggesting the principle boils down to the requirement of judges “to assess the legitimacy of whatever law or regulation or ruling is before them from the perspective of those who reap its greatest benefits and those who stand to lose the most”). Beatty suggests that “the principle of proportionality and the idea of fair shares” grounds economic and social rights. Id. at 139. 65 MÖLLER, supra note 12. 66 Id. 67 Frank I. Michelman, Socioeconomic Rights in Constitutional Law: Explaining America Away, 6 INT’L J. CONST. L. 663 (2008). 68 Porat, supra note 13, at 246; Dieter Grimm, Proportionality in Canadian and German Constitutional Jurisprudence, 57 U. Toronto L. J. 383 (2007), at 395. 13